Category Archives: land use

The issue of residency was raised Tuesday, as the Port Orchard
City Council (minus Rob Puttaansuu and Fred Chang, who were
working) discussed outgoing Mayor Lary Coppola’s appointment of his
wife Dee Coppola to the city planning commission.

It was up to the council to confirm (or not) the appointment.
The planning commission is an advisory board, like the several
other
boards and committees that weigh in on topics such as parks and
development design standards. The planning commission advises on
land use, and so could be seen as a relatively powerful body of
citizen advisers.

Typically, the council accepts the mayor’s recommendations for
all boards and committees without much to-do. But during discussion
of Dee Coppola’s appointment, there was a focus on the residency
rule that only one of the eight planning commission members can be
a nonresident. The council on Dec. 13, already had appointed Robert
Baglio, who lives outside city limits.

The Coppolas live in The Rockwell Apartments in downtown Port
Orchard, and they own a home in Manchester. At Tuesday’s meeting I,
too, was wondering about the residency issue, since Mayor Coppola,
in an interview Monday, told me he and Dee plan to move back to
Manchester.

The whole thing was also a bit reminiscent of
rumors that swirled around Lary Coppola’s official residence
during his 2007 bid for mayor.

On Tuesday, Councilman Fred Olin asked, “If someone on the
planning commission moves out of the city, and Mr. Baglio is
appointed as the non-resident, would that person have to withdraw
from the planning commission?”

City attorney Greg Jacoby said city code does not address the
issue, which has not come up before. He said there were a couple of
possible interpretations. On the one hand, the council could ask to
have the appointee removed from the commission. On the other, the
appointee could be considered grandfathered in. “I’m not saying
that’s the best interpretation,” Jacoby said.

At the request of the council, Jacoby said he would do further
research to try to clarify how the code should be interpreted in
the event Dee Coppola does move out of the city during her term on
the planning commission.

Dee Coppola herself was clear on what would happen. “I’d have to
resign,” she said, while allowing for the possibility of being
grandfathered in. It would be up to the council to make that call,
she implied.

Dee added that she and Lary have no immediate plans to move into
the Manchester house, in which the Coppolas have undertaken an
extensive remodel. There’s still a lot of work to be done, Dee
said. So as for moving, “It’s going to be a while.”

The Port Orchard City Council last week heard testimony on a
contentious land use issue — should a Gig Harbor advertising
company be allowed to put eight
billboards within city limits?

The issue grew thorny after the city initially turned down the
applications, submitted in batches last spring. James Weaver,
director of development, took the most “stringent” interpretation
of the city’s code, which is allowed and called for in another part
of the code, he said. The billboard company owner appealed to the
hearing examiner, and now the case has come before the council.

Like most cases that reach the appeal stage, there are a number
of questions in play:
Did Weaver correctly interpret the code? (The city’s hearing
examiner says so.)
Should the billboard company’s application be vested under old
rules, even though the city has since passed an ordinance banning
billboards? (The hearing examiner agrees with the owner here.)
And was the city’s ban on billboards a violation of constitutional
rights? (The hearing examiner declined to rule on this
question.)

During the hearing, the attorney representing the billboard
owner questioned the council’s ability to rule on the case since
none of them are attorneys. He railed against the process by which
the city countered his appeal, bringing the matter to the council.
He called the actions of City Attorney Greg Jacoby and attorney
Jennifer Forbes, representing the city, “frivolous” and “in bad
faith.” He said the process had gotten unnecessarily drawn out and
was wasting taxpayers’ money.

“I see a lot of blank faces here,” William J. Crittenden told
the council. “Do you think your money is being well spent?”

Before 2008, the council used to be the first stop (not the
second) in hearings on land use issues. The change was made, in
part, because of the tremendous amount of council time involved in
preparing for and conducting the hearings. The city now uses a
hearing examiner for preliminary review of land-use applications.
Where open-record public hearings on such issues were formerly held
before the city council, the open-record hearing is now held before
the hearing examiner. If the hearing examiner’s ruling is
challenged, the appeal moves to the city council.

In a work study meeting, Feb. 15, before the billboards hearing,
Councilman Rob Putaansuu questioned whether the council should be
involved at all, or whether the city should switch to a model as
such the one
adopted in 2010 by Kitsap County. Appeals that formerly came
before the county’s board of commissioners now go directly to
Superior Court.

Kitsap County Commissioner Steve Bauer proposed the change,
because he said having the board hear appeals created confusion
among the public. The board can only rule on whether the hearing
examiner has erred. Their ruling does not necessarily reflect the
position the board would have taken on a proposed project, Bauer
said.

Hearing examiners generally are attorneys, and they are required
to have extensive knowledge of land use codes. A city council or
board of commissioners, on the other hand, oversees matters on a
wide range of topics, meaning they are arguably less well-equipped
to navigate the labyrinth of motions, counter-motions, arguments
and counter-arguments that make up the appeal process.

Putaansuu suggested as much, and he reminded the council that,
although they’ve only heard one other matter since going to the new
system, it, too, turned nasty. A
proposed birthing center was turned down by the hearing
examiner over neighbors’ concerns about traffic (a needed re-zone
was denied). The council initially backed the hearing examiner’s
decision. They agreed to revisit the proposal, however, as
part of a legal settlement with the owners of the center, who
took their case to Superior Court and threatened to challenge the
city’s comprehensive plan before the Central Puget Sound Growth
Management Hearings Board. The city ultimately approved the
center.

Jacoby told the council that cities vary in their methods for
hearing appeals. Appeals in Gig Harbor and Fife go straight to
Superior Court. The Poulsbo City Council, like Port Orchard, hears
appeals.

“It’s sort of an issue of how much control the council wants to
have over the process,” Jacoby said. “There’s no right answer, but
we can certainly change it.”

The council could appeal any ruling of the superior court with
which they disagree, Jacoby said.

Most of the council said they would support a resolution
switching the process up. Councilman John Clauson said he could go
either way.

As for Crittenden’s criticism of the process, the council sat in
shock as he bad-mouthed the city up one side and down the other,
particularly Jacoby.

“I’ve been treated like crap by your city attorney for six
months,” Crittenden said.

When Crittenden continued his tirade, Coppola got up and walked
out of the hearing. (The mayor does not rule on an appeal, only the
council, so his absence did not delay proceedings.) He later said
he felt he had to excuse himself in order not to say something
inappropriate to Crittenden.

Councilwoman Carolyn Powers, later in the hearing, advised
Crittenden that he would present a more convincing argument “if you
would spend your time talking about the particular questions that
are pertinent to this whole case as opposed to talking about our
counselors spending a lot of money and time … Can you do that?”

“If my anger has spilled over on you, I apologize,” said
Crittenden, who remained angry with Jacoby, Forbes and the process
in general.

If nothing else, I guess, the change in procedure would spare
the council similar tongue-lashings in the future.

One year ago Tuesday Olympic Property Group President Jon Rose
and County Commissioner Steve Bauer met with me and environmental
reporter Chris Dunagan to tell us about the North Kitsap Legacy
Partnership.

Since then we’ve covered the different stages of the project,
including initial reaction from economic development leaders and
the environmental community. I think we’ve done a pretty good job
of staying on top of the latest developments with the project, but
because they’ve spanned the last year and been so varied in their
makeup, I thought it might help people to see a chronological list
of stories to help you remember what’s happened in the last
year.

These are stories I used to refresh my memory while writing the
Sunday story on the most recent development with the project. As
that story states, the tribes are now willing to come to the table
to talk with OPG and county officials — a significant turn in
events.

One part of the equation I did not include in my story was the
idea of creating a fully contained community land use designation
that would allow OPG to develop Port Gamble at a higher
density than currently allowed. OPG has not said explicitly that it
needs a FCC for the project to go forward, but leaders have said
they’d like to see it as an option because there aren’t many “tools
left in the toolbox.”

Dunagan recently wrote about FCCs and the countywide planning
policies that will be up for discussion Jan. 27 during a hearing of
the Kitsap Regional Coordinating Council.

Here’s the list of stories I used to write my Sunday story, and
additional stories I think are important to the larger NKLP project
— including Dunagan’s most recent countywide planning policies
story:

Taylor late last week said she believed her comments at a
meeting of the county’s board of commissioners on Sept. 27 lit a
fire under to county to comply with her request. But Neil Wachter
of the prosecutor’s office, who is handing the county’s case
against the gun club for alleged code violations and safety
concerns, said information never was withheld from Taylor.

In her comments to the board Monday night, Taylor said she was
told by a GIS analyst on Sept. 27 that she would have to go through
the prosecutor’s office to get the maps. When I called Kitsap
County Prosecutor Russ Hauge Tuesday morning for clarification, he
said it appeared her request fell under “rules of discovery,”
related to litigation. Any time one party in litigation requests
information from the opposing party in the suit, the court requires
a record of information traded, Hauge said.

Later in the week, Hauge stood by his initial analysis. Based on
what I told him, the rules of discovery appeared to apply. But
since Wachter is handling the case, Hauge had deferred to him to
make the call.

Wachter said he told GIS to “respond to her (Taylor) as they
would any other citizen of the county requesting a map.”

There was nothing subversive about how the county responded, he
said. “To my knowledge, nothing she has requested has been delayed
because of that temporary misunderstanding,” Wachter said.

Part of the confusion stems from the fact the GIS office serves
all other county departments, as well as local cities … and the
general public. Their job is to make maps, and the bulk of their
body of work is available free online to anyone and everyone. Not
even a public records request is required. GIS is independent of,
yet inter-related to the prosecutor’s office and the department of
community development, which is involved in the suit through its
code enforcement staff.

Taylor had made an inquiry of GIS during the summer. According
to Diane Mark, manger of GIS, Taylor, identifying herself as the
the gun club’s attorney, called the office again on Sept. 27,
saying she needed certain topographical maps in a hurry (in time
for the meeting). The GIS analyst she spoke to contacted DCD to
make sure they didn’t already have what she wanted (no point in
duplicating efforts), said Mark. DCD, in turn, suggested GIS check
with the prosecutor’s office to make sure Taylor’s order didn’t
fall under the category of a public records request.

Mark said that also would have been her inclination. “In any
situation where there’s any type of litigation, I make sure if any
department in the county is involved.”

Wachter’s ruling was, no, not only was what Taylor was asking
not subject to the rules of discovery, it did not require a formal
public records request. But GIS staff was not so sure, Mark said.
The reason was, Taylor asked for topographical maps for properties
mentioned in the gun club suit. After some creative thinking, the
GIS analyst suggested she simply make a map for Taylor showing land
within a radius of the gun club that would encompass those
addresses. That’s how Taylor made her request, which was
accommodated Tuesday afternoon.

“My concern is that this is being misconstrued as withholding
information,” said Mark. “In reality, we bent over backwards to
meet her request on very, very short notice.”

Just to review the time frame, Taylor made her initial inquiry
about topographical maps this summer. On Sept. 27 (last Monday) she
called the GIS office urgently seeking the maps for the meeting
that night. Sometime between her inquiry and Tuesday afternoon, GIS
contacted DCD, then the prosecutor’s office. Wachter gave GIS the
green light, and Taylor’s maps were produced by GIS staff.

So, was Hauge, as Taylor and others have suggested, overstepping
his authority? Not in so many terms, according to legal experts
from outside Kitsap County. If it’s one thing I’ve learned from
interviewing attorneys it’s the meaning of the term equivocal. If I
were interviewing doctors, the terminology might be “within normal
limits.”

Could Taylor’s request fall under the category of rules of
discovery? “It doesn’t sound out of line. It just sounds a little
bureaucratic,” said Jan Ainsworth, who teaches criminal law at
Seattle University School of Law.

In other words, an attorney would be within his or her rights,
when informed of a request such as Taylor’s to say, “Time out,
let’s make sure this doesn’t fall under the rules of
discovery.”

Then there’s the issue of the interrelationship of county
departments. “All of those departments are technically the
prosecuting attorney’s clients. That’s why it becomes a little
different if it’s litigation,” said Bob Siderius of the Washington
Bar Association. “I can see why the prosecuting attorney would want
to have records of request made for documents.”

That being said, Siderius added, a simple public records request
would seem to suffice.

In any case, be it under rules of discovery, or a public records
request or a simple request for data, county officials have
consistently supported Taylor’s right to the information she
requested. Small detail: rules of discovery allow 30 days for a
response. A public records request may be responded to within 5
days, at least to inform the requesting party how long it will take
to accommodate the request. The actual document(s) could be weeks
out.

But remember, folks, the deputy prosecutor who is handling the
case said the information Taylor requested was simple public
information, available without a request. And the fact is, she
received the maps on Tuesday, pretty quick turn-around for a custom
job for a member of the public, Mark said.

“We’ve not done anything to obstruct her from getting the
information,” said Hauge. “We’re bending over backwards to
accommodate her request.”

Sandra LaCelle, Kitsap County Republican Party Chairwoman, sent
this to us:

On September 13, 2010, at the Executive Board Meeting of the
Kitsap County Republican Party, the following resolution was
adopted:

Resolved, that the Kitsap County Republican Party hereby
condemns the actions of Kitsap County Prosecutor Russ Hague and his
office for the continual harassment and frivolous legal attacks
upon the officers and members of the Kitsap Rifle and Revolver
Club.

It is a bold statement for reasons I will provide further
down.

Rifle club members were out in force at Monday’s county
commissioner meeting addressing County Prosecutor Russ Hauge’s
lawsuit against the club. Some
of their comments will be included in a story Josh Farley is
working on. Their basic points were:

The club is all about safety.

The county commissioners need to reign in Hauge and the
Department of Community Development.

They asked why this had to be filed in Pierce County.

If the club is closed people will go shoot in the hills.

They questioned the qualifications of the prosecutor’s key
witness.

They think this is a vendetta Russ Hauge is launching against
Marcus Carter. (The two have faced off in court before.)

James Sommerhauser, a regular at these meetings and a fixture in
the local Democratic party, said he belonged to the club for a
couple of years. He thought it was safe, but said if it wasn’t he
probably wouldn’t have recognized how. He said if the club didn’t
get permits it was required to, then the club would be wrong in
that case. He also pointed out that the prosecutor is a separately
elected official, so county commissioner control over what the
prosecutor does is almost non-existent. Josh Brown, county
commissioner, said that the primary interaction between the
commissioners and the prosecutor is over the prosecutor’s
budget.

That does not necessarily mean the commissioners have to remain
silent, but they’re not clear right now what authority they have to
do or say anything.

Jim Coutu of Gig Harbor made a point that may speak to why some
people who have no dog in the fight would have strong feelings
about the suit. “Lawsuits come about because people cannot come to
terms any other way,” he said. “This doesn’t feel like something
that wanted to get resolved in a proper manner.” Where that matters
is that the public knows of no problems between the county and the
rifle club. And then there is a pretty big lawsuit.

You may recall there is also friction between the county and the
city of Bremerton over the city’s financial
participation, or lack of it, in the restructuring of the loan for
the Harborside Condominium complex. We’ve been reporting it for
months. It may result in a lawsuit, but because we have been
reporting the conflict for some time that news won’t come out of
the blue like the rifle club suit did.

The Central Kitsap Reporter had a story in May when neighbors of the
range wanted the county to take action. It was kind of a “he said,
she said” moment.

From a political standpoint, addressed in Farley’s story posted
Saturday, there is so much to consider. I think Hauge
was absolutely correct when he said the suit “could not have come
at a worse time” politically.

In the Aug. 17 primary Hauge won what was a de facto straw poll
by 12 percentage points. While that doesn’t officially fall into
“landslide” territory, it is a pretty comfortable lead. Now this
issue is out there, less than two months from election day. The
only way this is a political win for him is if overwhelming
evidence comes to light between now and the day ballot are mailed
out. Courts do not move that quickly. And people mad at Hauge for
taking this action will not wait until election day to mark their
ballots.

What if it turns out that Hauge is right? I know many people
will not consider that possibility, but I am not at liberty to rush
to judgment here. I have not read his filing and even from what I
little I have heard I have a lot of questions on both sides. But
again, what if it turns out Hauge is right?

Would Republicans then still have cause to claim that this
lawsuit is a “frivolous legal attack” and part of the “continual
harassment?” Though the party’s statement doesn’t specifically name
this most recent suit, in tone it seems pretty clear that the
county Republican Party has already judged this case before the
process plays out.

“Gather ye rosebuds while ye may,
old Time is still a-flying.
And this same flower that smiles today,
tomorrow will be dying.”
– Robert Herrick